23CA1424 Marriage of Combs 10-10-2024
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1424 City and County of Denver District Court No. 15DR31064 Honorable Demetria E. Trujillo, Judge
In re the Marriage of
Shelly Dill Combs n/k/a Shelly Dill Keeney,
Appellee,
and
Scott Michael Combs,
Appellant.
ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE RICHMAN* Dunn and Navarro, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced October 10, 2024
Van Horn Family Law, PC, William Van Horn, Bethany Harrell, Alyssa Dahl, Littleton, Colorado, for Appellee
William Peters, Denver, Colorado, for Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 In this post-decree proceeding, Sean Michael Combs (Combs)
appeals the district court’s order adopting a magistrate’s ruling
regarding parenting time and child support. We refer to the parties
by last names, as appellant largely did in the opening brief. Combs
uses the pronouns zer/Zer/theirs. We affirm.
I. Background
¶2 The parties divorced in 2016. The two children of the
marriage were seventeen and thirteen at the time of this appeal. As
relevant here, in November 2021, Shelly Dill Combs (Dill) moved for
a court order to address parenting time and enforce child support
orders (Dill’s motion). A magistrate heard the motion in September
2022 and issued an order several months later (November 2022
order). After Combs’ petition for review, the district court upheld
the magistrate’s order.
II. Dill’s Answer Brief Is Not Deficient
¶3 Combs asserts that Dill’s answer brief does not comply with
C.A.R. 28(a) and should be stricken. Dill’s answer brief doesn’t
raise new issues on appeal; it challenges Combs’ arguments. The
answer brief includes the reasoning behind Dill’s arguments and
points us to relevant legal authority supporting those assertions.
1 See C.A.R. 28(a)(7)(B) (requiring arguments in a brief to contain
contentions and reasoning, with citation to authorities and parts of
the record relied on); see also C.A.R. 28(b) (appellee’s answer brief
must conform to the requirements of C.A.R. 28(a)). Combs’
argument that Dill’s brief is improper is meritless.
III. Sufficient Evidence
¶4 Combs contends that the district court erred when it
concluded that the magistrate had sufficient evidence to support its
November 2022 order. Specifically, Combs asserts that the
magistrate’s determination of sufficiency was “belied by its own
finding” that it had not “heard anything about [Dill’s motion’s]
issues.” The court did not err.
A. Relevant Law and Standard of Review
¶5 Our review of a district court’s order reviewing a magistrate’s
ruling is effectively a second layer of appellate review. In re
Marriage of Sheehan, 2022 COA 29, ¶ 22. We review de novo issues
of law and, like the district court, must accept the magistrate’s
factual findings unless they are clearly erroneous. Id.
¶6 Determinations about the weight and credibility of the
evidence is within the trial court’s (here, the magistrate’s) sole
2 discretion. In re Marriage of Lewis, 66 P.3d 204, 207 (Colo. App.
2003) (“[C]redibility determinations and the weight, probative force,
and sufficiency of the evidence, as well as the inferences and
conclusions to be drawn therefrom, are matters within the sole
discretion of the trial court.”). The magistrate “can believe all, part,
or none of a witness’s testimony, even if uncontroverted, and its
resolution of conflicting evidence is binding on review.” In re
Marriage of Amich, 192 P.3d 422, 424 (Colo. App. 2007).
B. Analysis
¶7 Combs alleges that the magistrate did not have sufficient
evidence to determine the issues in Dill’s motion. The magistrate
made findings related to each issue, and we conclude that sufficient
evidence supports the order.
1. Civil Communicator
¶8 Dill requested an order clarifying the “requirements of the
parties as to communication.” A previous order had required the
parties to use a service called Civil Communicator. At the hearing,
Combs acknowledged that zer had been blocked from using the
service because of inappropriate or confrontational messages.
Combs testified that zer refused to communicate through Civil
3 Communicator because zer preferred to communicate through
counsel. Dill testified that she relies on Civil Communicator and
that it makes her life better, but that she “needs [financial] help” to
afford the service.
¶9 The magistrate — discounting Combs’ testimony and crediting
Dill’s, and citing an example as to why the communicator was
necessary — found it appropriate for the parties to continue to use
Civil Communicator and ordered them to do so until the youngest
child turns eighteen years old. The magistrate also ordered Combs
to pay for the service. The findings are supported by the record,
and the orders were within the magistrate’s discretion.
2. Communication Regarding Out-of-State Travel and Contact Information
¶ 10 Dill requested that the court enforce a prior stipulation in
which the parties agreed to inform one another about the children’s
location when traveling out of state. Dill testified that the children
would be evasive about where they were during Combs’ parenting
time and she would then, for example, find “a receipt in their pocket
from being in Texas.” Dill testified that she had no issue with
4 Combs taking the children out of state but wanted to be informed
about these trips.
¶ 11 The magistrate sanctioned Combs for violating a prior
stipulation, finding that zer had a “history of removing the children
from the state and traveling to Texas without advance notice to
[Dill].” The magistrate then ordered that “[e]ither parent shall
inform the other parent if they are traveling with the children out of
state.” The magistrate ordered Combs to allow Dill to add a
tracking application to the children’s cell phones so “she can be
aware of the children’s location while they travel out of state.” And
the magistrate ordered Combs to post a bond to secure payment to
Dill if zer turned the locator device off. The magistrate’s findings
are supported by the record and the orders were within the
magistrate’s discretion.
3. Extracurricular Activities and Transportation
¶ 12 Dill argued that Combs refused to take the children to their
extracurricular activities, and Dill asked the magistrate to order
Combs to arrange for the children’s transportation during zer’s
parenting time by either driving them or arranging for appropriate
transportation. At the hearing, Dill testified that Combs refused to
5 transport the children to their extracurricular activities and instead
improperly relied on transportation services that do not permit
children to ride alone. Combs’ paralegal and roommate also
transported the children. The children were dropped off by these
drivers at the parents’ exchange location — a grocery store parking
lot — when Dill was not yet there to pick them up. Dill testified
that she felt this was unsafe for the children.
¶ 13 The magistrate found that the parent who has parenting time
is responsible for transporting the children to their extracurricular
activities and ordered that the responsible parent must arrange for
transportation, using a service that permits the transportation of
children under eighteen years old. The person dropping off the
children should not leave until they confirmed that the receiving
person is present. Again, these findings were supported by the
record, and the orders were within the magistrate’s discretion.
4. Access to the Children’s Cell Phones
¶ 14 Dill informed the magistrate she does not have access codes to
monitor the children’s phones to ensure they are not accessing
inappropriate content. Combs’ counsel informed the court that it
6 was zer’s position that zer did not need to provide them to Dill, and
Combs then testified that the phones were already monitored.
¶ 15 The magistrate found that although Combs considered it
unnecessary for Dill to have access codes to the children’s phones
in order to monitor them, Dill had a right to communicate with the
children and have reasonable cell phone access. The magistrate
thus sanctioned Combs for interfering with Dill’s access by allowing
Dill to add an application to the children’s phones so she could be
aware of their locations when they traveled out of state. And the
magistrate also ordered that if Combs did not cooperate with Dill in
installing the applications, Dill could provide the children with
alternative cell phones, and Combs would be obligated to reimburse
Dill for the costs of such phones. Again, these findings were
supported by the record, and the orders were within the
5. Medical Expenses
¶ 16 Dill requested that the court require Combs to pay all of the
children’s medical and vision expenses, as the parties had
previously agreed in a 2019 stipulation adopted by the court (2019
stipulation). The court discounted Combs’ testimony suggesting
7 that zer could not recall zer’s income. The court took judicial notice
of Combs’ sworn financial statement, which indicated that zer’s
monthly income is $14,000. According to Exhibit 3 and Exhibit 28,
which were admitted, Combs owes Dill $5,712.29 in previously
incurred medical expenses. The court then found that Combs’
monthly income was sufficient to cover these costs and ordered the
expenses to be paid within 60 days. These findings are supported
by the record, and the order was within the magistrate’s discretion.
6. School Supplies and Extracurricular Activity Expenses
¶ 17 Dill testified that the parties had agreed to split costs for
school supplies and extracurricular activities as part of a stipulated
2017 court-ordered permanent parenting plan (2017 stipulation).
She also relied on Exhibit 3, containing receipts for school expenses
and extracurricular activities. She testified that the parties
previously agreed — in the 2019 stipulation — that Combs would
pay for piano lessons in their entirety, but Combs stopped paying
for those lessons.
¶ 18 The magistrate found that the parties had agreed to evenly
split the children’s non-medical expenses, except for piano, which
Combs would pay for. The magistrate found that Exhibit 3 was the
8 best evidence of expenses and found that Combs has sufficient
income to make the court-ordered payments. The magistrate
ordered Combs to pay Dill $240 to cover the piano lessons, and
$3,425.71 to cover the extracurricular activities and school supply
expenses, within 60 days. Again, these findings are supported by
the record, and the orders were within the magistrate’s discretion.
7. Denver Academy Payments
¶ 19 Dill requested that the court order Combs to pay one child’s
Denver Academy (DA) tuition fees, as the parties had previously
agreed in 2020. Dill testified that Combs had only, as of the day of
the hearing, signed the DA payment agreement, but zer did not
upload the fiduciary agreement on Civil Communicator. The
magistrate ordered that Combs “remains responsible for all [DA
tuition] payments until [the child’s] graduation.” These findings are
¶ 20 As detailed above, evidence supports the magistrate’s order
regarding each disputed issue in Dill’s motion. The magistrate’s
statement, during the hearing, that Dill had not yet provided
evidence on the issues in her motion does not erase this evidence.
9 The magistrate’s written order, which controls, includes a summary
of evidence relating to each issue presented in Dill’s motion. See In
re Marriage of McSoud, 131 P.3d 1208, 1221 (Colo. App. 2006)
(district court could modify its oral findings or orders at any time
before issuing a final written order). The district court, therefore,
made no error in concluding that sufficient evidence supported the
magistrate’s determinations.
IV. Subpoena
¶ 21 Combs also argues that the magistrate erred when it did not
require Dill to have subpoenaed zer’s testimony at the September
2022 hearing. Combs did not adequately develop this argument.
See Barnett v. Elite Props. of Am., Inc., 252 P.3d 14, 19 (Colo. App.
2010) (“We will not consider a bald legal proposition presented
without argument or development.”).
¶ 22 Combs provides no relevant legal support for this argument.
First, Combs cites to C.R.C.P. 45, which, under a subsection related
to subpoenaing named parties, bars the subpoenaing of discovery
from named parties without good cause. C.R.C.P. 45(a)(1)(D).
Combs does not explain how this rule required Dill to subpoena
zer’s testimony. Second, Combs provides authority discussing the
10 power of a subpoena to compel attendance of a party at a hearing.
See, e.g., Redding v. Virginia Mason Med. Ctr., 878 P.2d 483, 486
(Wash. Ct. App. 1994) (“The function of a subpoena is to compel
attendance at court proceedings . . . .”). But Combs does not
explain how these cases require a named party who voluntarily
appears at a hearing and gives their own testimony to have been
subpoenaed to do so. Finally, Combs cites a case in which a
division of this court applied a section of the Children’s Code to
compel the testimony of a non-party witness in a dependency and
neglect proceeding. See People in Interest of E.H., 837 P.2d 284,
289 (Colo. App. 1992). Combs does not explain how this Title 19
provision applies in zer’s Title 14 case. Because Combs has not
developed this argument, we decline to address it further. See
Barnett, 252 P.3d at 19.
V. Bias or Appearance of Impropriety
¶ 23 Combs next contends that the magistrate exhibited bias
against zer by (1) “engaging in a discriminatory discussion of zer’s
gender identity” in its written order; and (2) allowing testimony that
zer considers dismissive to zer’s gender identity. We are not
convinced.
11 A. Additional Facts
¶ 24 During the hearing, Dill’s counsel elicited testimony from
Combs regarding zer’s pronouns. Dill’s counsel then asked Combs
if zer’s pronouns were the same words as “a character in Superman
who tries to kill all those who destroyed his family” or “a character
in Ghostbusters” Combs’ counsel did not object. Nonetheless, the
magistrate stopped the line of questioning, sua sponte, identifying it
as unproductive. The magistrate then asked Combs what zer would
prefer to be called, and both the magistrate and Dill’s counsel
accepted Combs’ request to be called “Zer”. The magistrate’s
written order also indicates that the court used “[r]espondent’s
pronouns.”
B. Relevant Law and Standard of Review
¶ 25 Another division of this court has determined that “there is a
difference between a judge who has the appearance of impropriety
and a judge who has actual bias.” See People v. Jennings, 2021
COA 112, ¶ 18. The Code of Judicial Conduct requires a judge to
recuse when the judge’s involvement with a case might create the
appearance of impropriety, among other reasons. C.J.C. 2.11(A);
see also People in Interest of A.G., 262 P.3d 646, 650 (Colo. 2011)
12 (when a litigant makes a claim that the court’s decision has the
appearance of impropriety, the inquiry is focused on “protect[ing]
public confidence in the judiciary”). A judicial officer may therefore
be disqualified when “a reasonable observer might have doubts
about the judge’s impartiality.” Jennings, ¶ 19. However,
“[b]ecause the concern is the reputation of the judiciary rather than
protection of the parties, litigants may waive disqualification” based
on the appearance of impropriety. A.G., 262 P.3d at 650.
¶ 26 Actual bias is bias that “in all probability will prevent [a judge]
from dealing fairly with a party.” Id. (quoting People v. Julien, 47
P.3d 1194, 1197 (Colo. 2002)). This includes circumstances in
which the judicial officer “has personal bias or prejudice concerning
a party or a party’s lawyer.” Id. at 650-51 (quoting C.J.C.
2.11(A)(1)). An inquiry to determine whether a judicial officer
exhibits actual bias is focused on “the subjective motivations of the
judge.” Id. at 651. In a claim regarding actual bias, disqualification
of the judge is meant to “ensure that litigants receive a fair and
impartial trial.” Jennings, ¶ 20. To show actual bias, “[t]he record
must establish such bias clearly; mere speculative statements and
conclusions are not enough.” Jennings, ¶ 28.
13 ¶ 27 Because disqualification based on actual bias is designed to
ensure that litigants receive a fair trial, there is no provision for
waiving it. A.G., 262 P.3d at 651. Thus, claims for disqualification
based on actual bias may be considered on appeal even when they
were not raised in the fact-finding court. See Jennings, ¶ 21. We
review a claim for disqualification based on actual bias de novo. Id.
at ¶ 27.
C. Analysis
¶ 28 Combs does not specify whether zer’s claim relates to the
magistrate’s appearance of impropriety or actual bias. On the one
hand, Combs quotes caselaw regarding the appearance of
impropriety. But Combs did not seek to disqualify the magistrate
based on an appearance of impropriety during the September 2022
hearing. See Adams Cnty. Hous. Auth. v. Panzlau, 2022 COA 148, ¶
24 (tenant waived appellate review of argument that trial court
judge’s recusal was required where tenant did not raise argument
in the trial court). Combs, therefore, waived any contention based
on an asserted appearance of impropriety.
¶ 29 Combs’ argument also suggests that the magistrate was
actually biased when zer accused the magistrate of a “wholly
14 unnecessary, dismissive, and discriminatory discussion of zer’s
gender identity.” Combs did not present this argument to the fact-
finding court, but a claim of actual bias cannot be waived. A.G.,
262 P.3d at 651.
¶ 30 We conclude the record does not clearly indicate bias. The
magistrate’s written order recounts Combs’ testimony that zer is
transgender and nonbinary and uses the pronoun zer. The
magistrate then indicates that the order uses Combs’ pronouns.
Because the magistrate’s order recounts facts in the record as
testified to by Combs, and explains the language used in the order,
we perceive no actual bias. Similarly, the record shows that the
magistrate foreclosed a line of questioning about zer’s pronouns
because the court found it unproductive; this, too, does not
demonstrate clear bias against Combs.
VI. Dill’s Testimony
¶ 31 Combs contends that Dill’s testimony, in its entirety, was
“based on conclusory and/or bare bones statements, devoid of any
specific facts or personal knowledge.” Zer did not preserve this
claim for our review.
15 ¶ 32 Combs’ attorney made many objections during Dill’s
testimony. For instance, he objected to the relevance of several
exhibits and to Dill’s testimony as nonresponsive. He generally
objected to the admission of Exhibit 3 and to Dill’s discussion of
Combs’ nonpayment of DA’s tuition. But Combs’ attorney never
made a specific, contemporaneous objection to Dill’s testimony on
the basis of CRE 602. “In order to properly preserve an objection to
evidence admitted at trial, a timely and specific objection must
appear in the trial court record.” Am. Fam. Mut. Ins. Co. v. DeWitt,
218 P.3d 318, 325 (Colo. 2009). Thus, zer did not properly preserve
it for our review.
VII. Law of the Case
¶ 33 Combs argues that the magistrate abused its discretion,
violating the law of the case, when it “reinstate[d] . . . earlier legal
stipulations . . . as those did not survive [a 2021] modification”
(2021 order). Combs asserts that the 2021 order replaced the 2017
and 2019 stipulations upon which the magistrate relied when
imposing expenses on zer in this case. We disagree.
¶ 34 The law of the case doctrine contains two branches, analyzed
differently depending on whether the prior law of the case involves
16 the court’s own rulings or the rulings of a higher court. See Owners
Ins. Co. v. Dakota Station II Condo. Ass’n, 2021 COA 114, ¶ 23.
When a higher court’s rulings are at issue, the doctrine known as
the mandate rule in those circumstances is not discretionary. See
id. at ¶ 24. Under the mandate rule, the holdings of an appellate
court become the law of the case, which a district court must follow
on remand. Id.
¶ 35 When the court’s own rulings are at issue, the doctrine
generally requires the court to follow its prior relevant rulings made
in the same case. See Giampapa v. Am. Fam. Mut. Ins. Co., 64 P.3d
230, 243 (Colo. 2003). “The doctrine applies to decisions of law. It
does not apply to findings of fact . . . .” Paratransit Risk Retention
Grp. Ins. Co. v. Kamins, 160 P.3d 307, 313 (Colo. App. 2007). In the
trial courts, the “[a]pplication of law of the case by a trial court to
its prior rulings is a discretionary practice.” Kuhn v. Dep’t of
Revenue, 897 P.2d 792 n.5 (Colo. 1995). “A district court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair.” In re Marriage of Gromicko, 2017 CO 1, ¶ 18.
¶ 36 Here, the magistrate followed the case’s prior relevant rulings.
The magistrate found, in its discretion, that the 2021 order
17 “modifie[d] only the issue that is specifically addressed in that
order.” The magistrate’s 2021 order, which addressed parenting
time and decision-making responsibility, also discussed several
discrete expenses — the payment of a dog breeder fee and the fees
for a Parental Responsibilities Evaluator — neither of which were at
issue in this matter. Therefore, according to the law of the case, as
the magistrate determined, the orders standing from 2017 and
2019 remained in force. We conclude that the magistrate correctly
applied the law of the case.
VIII. Attorney Fees
¶ 37 Dill requests that we award her attorney fees — assessed
against Combs and zer’s counsel — under C.A.R. 38(b), C.A.R. 39.1,
and sections 13-17-101 and 14-10-119, C.R.S. 2024. We agree
that the appeal is substantially frivolous, and we therefore grant
Dill’s request for an award of appellate attorney fees against Combs
and counsel.
¶ 38 Frivolous appeals include those that lack any rational
justification or are prosecuted for the sole purpose of harassment or
delay. Wood Bros. Homes, Inc. v. Howard, 862 P.2d 925, 934-35
(Colo. 1993). As relevant here, an appeal may be deemed frivolous
18 as argued where, for example, the appellant fails to set forth a
coherent assertion of error. See Averyt v. Wal-Mart Stores, Inc.,
2013 COA 10, ¶¶ 39-40; Castillo v. Koppes-Conway, 148 P.3d 289,
292 (Colo. App. 2006).
¶ 39 Combs’ appeal includes claims that lack any rational
justification or coherent assertion of error. For instance, zer’s
meritless attack on Dill’s briefing and zer’s claim — after noting
evidence in the record to support each of the motion’s subparts —
that the magistrate nevertheless had insufficient evidence to grant
Dill’s motion are examples of meritless arguments. Combs twice
asserts error regarding a two-faceted legal principle — bias or law of
the case — without clearly indicating which part of the doctrines zer
intends to apply. In addition, Combs faults the magistrate for
ruling that prior orders of the case remained effective while at the
same time, paradoxically, faulting her for failing to apply the law of
the case. Finally, Combs’ reply brief cites to matters not in the
record. Thus, we conclude Combs’ appeal was frivolous.
¶ 40 Accordingly, we grant Dill’s request for an award of attorney
fees against Combs and counsel incurred on appeal. We exercise
19 our discretion under C.A.R. 39.1 to remand this issue to the district
court for a determination of a reasonable amount of those fees.
IX. Disposition
¶ 41 The order is affirmed, and the case is remanded for the district
court to award reasonable appellate attorney fees to Dill.
JUDGE DUNN and JUDGE NAVARRO concur.